Why the Framers Could Suggest Ratification by Only Nine States

In prior postings such as the one here, I have explained why it is wrong to claim that the commissioners (delegates) to the 1787 Constitutional Convention exceeded their power in recommending that the Articles of Confederation be replaced by a new instrument.

Another aspect of the same charge is that the Framers exceed their power by providing that the Constitution could come into effect upon ratification by only 9 states instead of the 13 the Articles required.

One quick answer is that ultimately the Constitution was ratified by all 13. The 13th state (Rhode Island) ratified on May 29, 1790, less than three years after the document was composed.

But there is a more formal, and perhaps better answer. Here’s the background:

The Declaration of Independence explicitly presented Americans to the world as “one people”—not as 13 different peoples. It is true that this “one people” initially operated through 13 separate governments. But this is by no means unusual in world history: Within the loose league mis-labeled the Holy Roman Empire, the German people were governed by a multitude of states. From 1945 until unification in 1990, the German people were divided into two entirely separate countries. From the fall of the Western Roman Empire until 1870, the Italian people were divided into a multitude of different countries. The Korean people are divided into separate sovereignties today, as are the Irish.

Under the dominant political theory of the Founding Era, public officials were agents of the people. At the time of Independence, different segments of the American people had granted governmental power to disconnected sets of agents (officials of the several states). In 1781, those separate sets of agents agreed via the Articles of Confederation to formally empower the Confederation Congress.

Thus, the Articles essentially comprised a treaty among independent states. Of course the signatories to a treaty always may agree among themselves to repeal or re-write the instrument.

But under principles of agency prevailing both at the Founding and today, those who hire agents are called “principals.” In this case, the principals were the American people. Legally, a principal may revoke and alter his agent’s authority at any time, and entrust all or part of that authority to others.

Put another way, the American people could decide to revisit the treaty obligations their agents had contracted on their behalf. The commissioners at the 1787 convention suggested that the people do just that—by taking some of the power heretofore exercised by state officials and the Confederation Congress and entrusting it to new federal officials. This was why James Madison said on the Convention floor that “he thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves.”

The ratification procedure was crafted in such a way that if the Constitution were ratified, that ratification had a good chance of representing the will of a majority of the American people—or at least of the American electorate. This was done in two ways: (1) Ratification or rejection would come not from state politicians, but from conventions directly elected by the voters for the sole purpose of considering the Constitution. (2) The Constitution would not go into effect unless conventions in 9 states agreed.

Why nine? Some have pointed out that 9 represented a 2/3 vote of states, and that it was an accepted number under the Articles for certain important decisions.

But I think there was a more central reason: As the Constitution’s proposed allocation of the new House of Representatives showed, the Framers believed that any combination of 9 states would comprise a majority of American citizens. Even if the 5 most populous states all refused to ratify, the remaining 9 still would represent a majority of the electorate.

But what if 9 small states all ratified by very narrow margins, and 5 big states rejected the Constitution by huge margins? Wouldn’t that result in ratification by a minority?

This was theoretically possible. But the Framers knew the odds for ratification in Pennsylvania (the second most populous state) were very high. So the chances of a “9 smallest states vs. 5 biggest states” line-up was negligible. If only 9 ratified, at least one large state—Pennsylvania—would be among them.

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In addition, the Framers knew as a practical matter that even if 9 states, including Pennsylvania, ratified, it still wouldn’t be enough. The union needed New York (then ranking 4th or 5th in population) and it desperately needed Virginia (1st). Without one or the other—and probably without both—the Constitution could not be implemented. And if 9 states ratified but New York did not (New York’s Governor opposed ratification), the New York City region might well secede from the state and join anyway.

So the Framers had good reason to believe that if the Constitution did come into effect, this would occur by the will of a majority of America’s “one people.”

The result would be creation of a government in a manner almost unprecedented in world history: Ratified by a majority of the people themselves.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been repeatedly cited in U.S. Supreme Court opinions and published or cited by many top law journals (See: www.constitution.i2i.org/about/) He co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). He was a law professor for 25 years and taught constitutional law and related courses. He is the Senior Fellow in Constitutional Jurisprudence at Colorado's Independence Institute.

7 thoughts on “Why the Framers Could Suggest Ratification by Only Nine States”

WHAT? Your words Rob; The Declaration of Independence explicitly presented Americans to the world as “one people”—not as 13 different peoples.

Show me where is paints this picture to the world as “One People”. Are you implying or making this up to justify your statement?

The Declaration of Independence is a statement of FACT! A decision by all who wish to be this state of being and had no such reasoning what so ever. Liberty is simply establish from limiting Government and they may have thrown these numbers around to justify their means but we are far from Liberty in this country. So again, show me where it is “Explicitly Presented Americans” to the one world AS “one people”.

If you took 9 states of decided independents and agreed to terms of limits to safeguard Liberty we would have some and I can fully show without question we have very little liberty if any at all. The size of Government is one statement of FACT that totally defies this statement “plain and simple”.

We don’t even have a constitutional Government, we have a corporate Government which carries all the proof we need to abolish it as stated in our Declaration of Independence when tyranny rears its ugly recognizable head and it has and 13 corrupt states will not stop it, 9 will not stop it because there is not 9 non corrupt states left and there sure in the hell is no state of BEING independent in any states, or very few have made it known.

I live in Utah and I am a declared Independent and sovereign are you? I have the documents and the signing and those who have copied and signed agree to this State Of Being and nothing short of it. And I don’t care which 9 states you get will not ratify this mess because they would have to defy their own populous.

I talk to people all the time and hardly one or two have claimed to be independent and therefore are only lying to themselves.

I have disagree. I think it was nine because of the 3/4 majority to approve of any new amendment or alter or abolish the constitution. I think it sounds like a great idea for today. We can just rewrite a new constitution founded on strong federal concepts so we can abolish the current federal government completely.

Rob, I’m a bit new to this issue. Tell me, if only nine or ten states had ratified the constitution, would it have been imposed in some way on the others? Or would have had a divided American people, some in the United States and some not?

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been repeatedly cited in U.S. Supreme Court opinions and published or cited by many top law journals (See: www.constitution.i2i.org/about/) He co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). He was a law professor for 25 years and taught constitutional law and related courses. He is the Senior Fellow in Constitutional Jurisprudence at Colorado's Independence Institute.